The Aggressor and the Aggrieved: Understanding the World of Kim Davis

In all wars words are used as weapons. Effective propaganda, whether true or not, is critical to any campaign. Conflicts are conveyed as black or white. And, the best propaganda clearly identifies the aggressor and the aggrieved. The cultural war over same-sex marriage is no exception.

Christian fundamentalists proclaim Kim Davis and Christianity are the aggrieved. Roger Gannam, one of Davis’ lawyers said, “Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman. And she’s been ordered to stay there until she’s willing to change her mind, until she’s willing to change her conscience about what belief is.” In fact, Ms. Davis was not in jail for her religious beliefs. She was in jail because she refused to carry out her sworn duty as Rowan County Clerk. Words are being used to fight this battle, which sits right at the demarcation between church and state. Everyone, from progressives to the far right, is outraged. But who is right? Who is the aggressor and who is the aggrieved? The answer is far from black and white.

The History of America as a “Christian Nation”

Religious fundamentalists often invoke our Founding Fathers to show we are a Christian nation. But, our Founding Fathers did not believe our country should be based on any religion. From its inception, America has been a representative democracy, not a theocracy. No official religion is mentioned in the Constitution. And, there was a desire to separate church and state affairs. President John Adams said, “The Government of the United States is not, in any sense, founded upon the Christian Religion.” Almost two centuries later, John F. Kennedy stated, “I believe in an America where the separation of church and state is absolute… where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials.”

Today, there is still concern about religion’s influence in our government. But the right is also nervous about the government’s infringement of their religious freedoms. And, Kim Davis’ jailing for refusing to issue marriage licenses to gay couples has either made her the most visible antagonist or hero in this fight. Are fundamentalists’ religious rights being restricted or is their practice adversely affecting the rest of the nation?

Natural Law and God’s Authority

To some, God’s law takes precedence over American jurisprudence. Republican Presidential candidate, Mike Huckabee has stated, “[The Supreme Court is] most certainly not the Supreme Being that can unwrite the laws of nature and the laws of nature’s God.” The meaning of “natural law” has been debated since ancient Greece. Originally it meant there were certain innate laws —ways of behaving— that applied to all people, regardless of nationality or station in life. Only later did the Church define it as divine or God’s law. But in the 17th century Sir Edward Coke, one of England’s most important jurists, believed human nature, along with common law was more important than ecclesiastical law. This had profound effect on our Founding Fathers and remains important in today’s American legal system.

Huckabee bases his notion of natural law on a strict reading of the Bible. Rather than reflect human reason, he uses “natural law” to mean God’s law and only God’s law. Like Huckabee, Kim Davis’ faith is rooted in a literal interpretation of the Bible. When asked by a gay couple, under whose authority was Davis denying them a marriage license, she replied, “Under God’s authority.” But whose God? How does Davis justify acting on God’s authority in her job as county clerk?

George Lakoff, author of Moral Politics, describes two types of Christianity: Nurturant Parent Christianity and Strict Father Christianity. In the Nutrurant Parent model, God is loving and nurturing. Christians reflect God’s will through empathy and love. God’s grace is a reflection of God’s love and only through His grace do we learn to act morally towards others. Strict Father Christianity requires obedience, moral strength, self-discipline, self-denial, and enforcement of God’s laws through reward and punishment. One is rewarded for following God’s authority and punished for not. A good person is one who is self-disciplined, works well in a hierarchy by obeying strict orders from above and giving strict orders to those below. This is the world of Kim Davis.

Liberals distrust of authority, especially with Davis’ authority from God, magnifies the shock and anger at her conduct. Social psychologist, Jonathan Haidt writes about the moral foundations of liberals and conservatives. In his book, The Righteous Mind: Why Good People Are Divided by Politics and Religion, he identifies five characteristics that define people’s behavior. One, how we react to authority, is of interest here. His research shows that while conservatives score high on accepting authority, liberals do not. Iconic 1960s phrases, “Question authority” and “Don’t trust anyone over 30” still resonate with liberals today. Words like “wacko” and “nutcase” used to characterize Davis permeate social media. In such an atmosphere, understanding takes a lot of effort.

Freedom of Religion

Tangent to the ideas of a Christian America and God’s law, is the right’s interpretation of the First Amendment, specifically its Free Exercise Clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Supporters of Ms. Davis argue that her incarceration goes against her freedom to exercise her religion. But as a government official she can’t force others to adhere to her personal convictions. This is why the separation between church and state is important. In essence, we now have two types of marriage in this country: religious and civil. The first follows the tenets of each religion. Couples practice their faith unencumbered by the state. Civil marriage bestows legal rights, benefits, and protections on medical, estate planning, employment, and end-of-life issues. These civil rights are at the core of the fight for same-sex marriage. Its legalization does not compel clergy to perform same-sex marriages. Each form of marriage is separate but equal. Davis’ beliefs don’t allow her to accept this.

John C. Eastman, a conservative law professor and constitutional law scholar, recently wrote in the National Review, “…what the same-sex couple and its chorus of advocates are really after…is not ‘marriage’ but forcing Ms. Davis and everyone like her to bow to the new unholy orthodoxy.” He calls the Supreme Court’s decision in Obergefell “lawless,” pointing to the very public dissents of Justices Scalia and Thomas. Scalia went so far as to question the legitimacy of the Supreme Court he sits on when he stated, “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” Eastman ends his tirade by saying, “…the Constitution is whatever the judges say it is, even if what they say is a patently erroneous interpretation of the Constitution.” This is, indeed, a war of words, often angry and sanctimonious.

The Supreme Court is the arbiter of constitutional law. Despite Justice Scalia’s and Eastman’s opinion, the legitimacy of the Supreme Court is not at issue. Debasing its decisions because they don’t reflect one’s personal beliefs hurts the institution and the country as a whole. And there are legitimate ways to overturn Supreme Court rulings: either by the Court reversing itself or by Congress and the States rewriting the Constitution.

Personal Convictions verses Public Actions

The Supreme Court has recently clarified the limits of government reach in our private lives. The Court ruled in the Hobby Lobby case that privately held companies could not be compelled to offer contraceptives to its employees under the Affordable Care Act. This ruling was specific to the rights of private entities. It did not include publicly held companies or government institutions. There were no objections to the Court’s ruling by the far right, and Mike Huckabee applauded the decision. Which raises the question: are the Supreme Court’s decisions “lawless” only when the right objects to them?

As a government worker, Davis has sworn to carry out U.S. law. Government employees are held to a standard that often takes precedence over their personal actions. The Hatch Act limits election activities in which federal employees can engage. They can’t run for office in partisan elections. They can’t solicit campaign contributions. Nor can they take part in partisan activities while working or even when they are in a government office building. They agree to this as terms of their employment. If they want to run for a partisan office they must resign their government job. In addition, federal employees can be fired for using marijuana, even if they are using it in a jurisdiction in which it is lawful. Federal law still says it’s an illegal substance. And using it is cause for termination.

So, government employees are subject to certain constraints because of their jobs. And their personal feelings must sometimes remain secondary to carrying out their duties. Davis’ opinions about same-sex marriage are secondary to her sworn duty to carry out the law when she is acting on the government’s behalf. To say she is being persecuted for her religious beliefs is far from true. Her supporters respond by couching her actions as civil disobedience.

Civil Disobedience

Warren Cole Smith, Vice President of WORLD magazine, a Christian evangelical publication, likens Davis’ actions to Martin Luther King’s notion of civil disobedience. He quotes from King’s A Letter from Jail:

“Civil disobedience concludes that the non-violent resistor in the face of unjust and/or immoral law cannot in all good conscience obey that law. His decision to break that law and willingly pay the penalty evidences the highest respect for the law.”

Martin Luther King was practicing civil disobedience as a private citizen. Davis is a government employee. King’s civil disobedience did not force anyone else to disobey the law. Davis refused to allow her assistants to issue marriage licenses. No government employee is allowed to force her workers to break the law.

The Separation of Church and State

Damon Linker, author of The Theocons and The Religious Test, writes about the intersection of faith and politics. He states, “When Christian traditionalists attempt to use the law to impose their vision of sexual morality…they have failed to comprehend the ineradicably pluralistic character of a modern liberal society.”

Linker goes on to say, “History shows us that traditionalist religion can be compatible with various forms of non-liberal government (theocracy, absolute monarchy)…. When religion is liberal—when it makes few supernatural claims, when it is doctrinally minimal, and when it serves mainly as a repository of moral wisdom—it can play a significant role in a liberal society…. A deeply devout Christian —someone who places his faith at the center of his life— will tend to think of himself first and foremost as a member of one true church working toward the establishment of the kingdom of God under Jesus Christ….” Fundamentalists see America as a Christian nation. But, in reality, we are a pluralistic society. And a large segment sees Kim Davis’ actions as undermining that line between religious and civil rights.

Which brings us back to the question: who is the aggressor and who is the aggrieved? Our Constitution lays out the rights and limits of our freedoms by what is stated and what is not.

The First Amendment guarantees our right to practice our religion. But it says nothing about imposing Biblical law on others in the public sphere. The constant evolution and interpretation of our relationship with our government is central to American democratic process. Our Founding Fathers debated this at the beginning of our country. We fought the Civil War over this concept in the 19th century. And it is the root of much political rancor today.

The added challenge is developing new ways to discuss these issues, given our access to a huge repository of information, the speed at which it is delivered, and the constant barrage of the 24/7 news cycle. The resulting frenzy results in a cacophony of voices vying to be heard. Sensationalism, hyperbole, and spin are the result. Mike Huckabee knows he must put on a show to make headlines and to remain relevant. Matthew Staver, lead counsel for Ms. Davis, compares her incarceration to the treatment of Jews by the Nazis. He calls this “the new persecution of Christians.” We know Davis was not incarcerated for her religious beliefs. But the mix of her personal ideology with her official government actions is problematic. This hyperbole impedes any legitimate debate. More and more, these sideshows seem like one big circus. And this has become divisive. In a recent Washington Post-ABC poll, 63% felt Kim Davis should issue marriage licenses to everyone. Americans clearly support our pluralist society.

Kim Davis and the fundamentalist right are not aggrieved martyrs. Their narrow definition of Christianity and how it should be applied to social behavior is challenging in a diverse society. Linker states, “As long as the United States remains a liberal nation devoted to individual freedom, traditionalist religion…will fail to harmonize with politics….” And, as long as people like Davis and Huckabee continue to impose their beliefs on the rest of us, there will be friction. The separation of church and state and with it, the ascendance of a legal system over religious law requires we respect these boundaries, especially when we get close to them. Kim Davis and her supporters do not.